Citation Nr: 1751260 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 10-25 915 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for a left knee disability. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. M. Ciardiello, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1995 to December 1999, January 2002 to May 2002, and June 2008 to February 2009, with additional reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The issues of entitlement to service connection for a bilateral eye disorder, bilateral hearing loss, and carpal tunnel syndrome, as well as the issue of entitlement to a compensable disability rating for allergic rhinitis are currently in appellate status. However, as the Veteran has requested a hearing on these issues which has not yet taken place, they are currently not ripe for adjudication, and will be addressed in a future Board decision. In February 2014, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2016). FINDINGS OF FACT 1. The Veteran was scheduled for a VA examination, and the VA examination was necessary to decide the issue of entitlement to an increased evaluation for the service-connected left knee disability. 2. The Veteran failed to appear at the examination, and he has not presented good cause for the failure to appear. 3. Throughout the appeal, the Veteran's left knee disability has manifested as painful motion but not compensable limitation of flexion or extension. 4. The Veteran does not have one service-connected disability rated at least 60 percent disabling or two or more service-connected disabilities with one rated at least 40 percent disabling or a combined rating of at least 70 percent disabling and the most probative evidence of record showed that his service-connected disabilities do not preclude him from securing and maintaining substantially gainful employment at all times during the pendency of the appeal. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C.A. § 1155 (West 2016); 38 C.F.R. §§ 4.7, 4.71a, DCs 5256-5263 (2016). 2. The criteria for a TDIU have not been met at any time during the pendency of the appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2016); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.16, 4.19 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Left Knee Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2016). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2016); 38 C.F.R. §§ 3.321(a), 4.1 (2016). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2016). In initial rating claims, the Board must discuss whether "staged ratings" are warranted. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's left knee disability is rated as 10 percent disabling pursuant to 38 C.F.R. § 4.59, for painful motion. Under DC 5260, a noncompensable rating is warranted for leg flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. Under DC 5261, a noncompensable rating is warranted for leg extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2014); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. As an initial matter, in April 2014 the Board remanded the Veteran's claims for entitlement to an increased initial rating for a left knee disability and entitlement to a TDIU in order provide the Veteran a VA examination. The Veteran cancelled the VA examination and asked to reschedule, but never responded to the RO's inquiries regarding rescheduling the examination. When entitlement to a benefit cannot be established without a current VA examination, and a claimant, without good cause, fails to report for such examination in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655. The VA examination was necessary to decide the issues on appeal. The Veteran did not provide an explanation for cancelling the VA examination or for not responding to the rescheduling requests. As the Veteran did not provide good cause, the Board must adjudicate the Veteran's claims before the Board based on the evidence of record. Turk v. Peake, 21 Vet. App. 565, 569 (2008). The Veteran was afforded a VA examination in November 2009. The examiner noted the Veteran has had knee pain since service, which is sometimes aggravated in the form of a flare-up by climbing stairs. Left knee flexion was measured as 130 degrees, with pain starting at 130 degrees. The same range of motion was measured after repeat testing. The examiner reported left knee anterior tenderness, and normal stability. No subluxation or ankylosis was reported. The Veteran was diagnosed with left knee chondromalacia. The Veteran was afforded another VA examination in August 2013. The Veteran reported flare-ups of pain after climbing stairs and prolonged ambulation. Both left and right knees exhibited range of motion of 0-130 degrees with no objective evidence of painful motion. Upon repeat testing, the right knee had range of motion of 0-130 degrees, and the left knee had range of motion of 0-120 degrees. The examiner noted pain on palpation in the left knee. No instability of any kind was noted in either knee. The examiner also reported no recurrent patellar subluxation or dislocation. Additionally, no meniscus or cartilage abnormalities were noted. The examination report reflects that the Veteran will occasionally wear a Neoprene sleeve on his left knee for pain. When asked if the Veteran's left knee disability impacts his ability to work, the examiner responded in the negative. Upon a review of the foregoing and of the entire record, there is no evidence that flexion has been limited to 45 degrees or less, or that extension has been limited to 10 degrees or more in the Veteran's left leg at any time during the period on appeal. Accordingly, the Board finds that an initial rating in excess of 10 percent is not warranted under DCs 5260 or 5261 at any time. The Board notes consideration has been given to assessing the Veteran's knee disabilities under alternate diagnostic codes applicable to the knees. However, upon a thorough review, including the two VA knee examinations of record , there is no medical evidence of ankylosis, recurrent subluxation or lateral instability, removed cartilage, or dislocated cartilage with frequent episodes of "locking," pain, effusion into the joint, tibia and fibula impairment with nonunion or malunion, or genu recurvatum. To this end, the Veteran did assert that his knee was unstable; however, the Veteran described his knee instability in very uncertain and speculative terms. See February 2014 Hearing Transcript at 7. Unfortunately, the Veteran's failure to respond to the RO's VA examination scheduling request, which could have provided favorable evidence to the claim, renders the evidence of record insufficient to warrant a separate rating for lateral instability. As such, application of 38 C.F.R. § 4.71a, DCs 5256-5259 and 5262-5263 do not benefit the Veteran. Finally, the Board finds that the Veteran's symptoms have been stable throughout the appeal. Therefore, staged ratings are not appropriate TDIU The Veteran asserts, in substance, that he is unemployable due to his service-connected disabilities. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of non-service connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). All Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). In cases where the schedular criteria are not met, an extraschedular rating is for consideration. Id. The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. The assignment of a rating evaluation is itself recognition of industrial impairment. Service connection is in effect for a left shoulder disability rated as 10 percent disabling, tinnitus rated as 10 percent disabling, left knee disability rated as 10 percent disabling, and allergic rhinitis rated as 0 percent disabling. He has a combined 30 percent rating. Thus, his disabilities do not meet the minimum schedular threshold requirement (of a combined disability rating of 70 percent or more) to be considered for a TDIU rating. 38 C.F.R. § 4.16(a). A TDIU may be awarded on an extra-schedular basis if a Veteran fails to meet the applicable percentage standards set forth in 38 C.F.R. § 4.16(a), but is still unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Court, citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. Initially, the Board notes that in the Veteran's February 2014 hearing, he testified that he lost his last job because of his disability. See February 2014 Hearing Transcript at 12. He did not specify which disability he was referring to. The Veteran's most recent VA knee, shoulder, and tinnitus examinations all reflect that none of those conditions impact the Veteran's employment. Additionally, the record is devoid of any evidence, nor does the Veteran assert, that his left knee disability prevents him from employability. The Veteran was a registered nurse before he stopped working. Thus, the Veteran presumably completed a college degree program. Accordingly, even if the Veteran was found to be unemployable due to his physical disabilities, the record is devoid of any evidence, either medical or lay, that the Veteran is unable to obtain sedentary employment. The Veteran has explained that the biggest difficulty he faced as a registered nurse was that he was on his feet most of his shift, and this caused pain. Given the Veteran's level of education, the Board finds that the record does not warrant a finding that the Veteran is incapable of obtaining sedentary employment. Accordingly, referral for extraschedular consideration is not warranted. In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b). However, as the preponderance of the evidence is against the claim, the doctrine is not for application. ORDER An initial rating in excess of 10 percent for a left knee disability is denied. Entitlement to a TDIU is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs